NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

04-3280

CLEVELAND B. HOLLOWAY, Petitioner,

v. DEPARTMENT OF THE INTERIOR, Respondent.

__________ ________________ DECIDE D: April 8, 2005

__________________________

Before MAYER, LOURIE, and RADER, Circuit Judges

. PER CURIAM. Cleveland B. Holloway appeals the final decision of the Merit Systems Protection Board holding that the Depar tment of the Interior (“ agency”) did not violate the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8) (“WPA”), when it refused to reinstate him as a GS-11 geologist after a vo luntary leave of absence for pursuit of political office. Holloway v. Dep’t of the Interior , No. DE1221980017-M-1 (MSPB Mar. 30, 2004). We affirm

.We must affirm the board’s decision unless we determine that it is arbitrary, capricious, an abuse of discreti on, or otherwise not in accor dance with law, or if not supported by substantial eviden c e . 5 U.S.C

. § 7703(c) (2000); Cheeseman v. Office of Pers. Mgmt. , 791 F.2d 138, 140 (Fed. Cir. 1986). The board has jurisdiction over Holloway ’s indiv i dual right of action (“IRA”) appeal if he first exhaus ts his administrative remedies before the Office of Special Couns el and makes non-frivol ous allegations that: (1) he engaged in whistleblowing activity by making a protected disclos ure under 5 U.S.C. § 2302(b)(8); and (2) t he disclos ure was a c ontributing factor in the agency’s

decision not to reinstate him. Se e Briley v. Nat’l Archiv es & Records Admin. , 236 F. 3d 1373, 1378 (Fed. Cir . 2001); Schmittling v. Dep’t of the Army , 219 F.3d. 1332, 13 36 (Fed. Cir. 2000). If jurisdiction is esta blished, the agency will not be required t o reinstate Holloway if it dem onstrates by clear and convin cing evidence that it would have taken the same personnel action in t he absenc e of the alleged whis tleblowing

disclos ure. See 5 U.S.C. § 1221 (e)(2); Carr v. Social Sec. Admin. , 185 F.3d 1318, 1322 (Fed. Cir. 1999). In deciding an IRA appeal, it is not legal error for the board to decide a case based on the agency’s a ffirmative defense rather than first deciding whether the appellant has proved that his dis c losu res were protected by the WPA. See Yunus v. Dep’t of Veterans Affairs , 242 F.3d 1367, 1372 (Fed. Cir. 2001) (affirming a board denial of an IRA appeal bas ed only upon the board’s finding on the merits that the agency proved its affirmative defense). Holloway first alleges that the board improperly establis hed jurisdiction over his case when it failed to address the second j u risd ictional criterion: det erminin g whether he raised a non-frivolous allegatio n that his alleged whistleblowi ng dis c losures c onstituted

04-3280 2a contributing factor in the a gency’s refusal to reinstate him. W h ile it is true that the administrative judge in the in it ial decis ion establis hed bo ard jurisdiction witho ut addressing this criterion, the full board in its final dec ision correctly found this misstep t o be harmless and affirmed the finding of juri sdiction b e cause the record showed that Holloway had, in fact, made the requisite allegation. Because substantial evidenc e supports the board’s j u risdictional finding, t he board did not err by not remanding to the administrative judge on the question of jurisd iction. Further, the board’s decis i on establishing jurisdiction moots Holloway’ s request for a jurisdictional hearing. Holloway ’s two-fold attack upon the board’s evaluation of the merits also fails. He asserts that: (1) the board erred by fi nding, based only upon t he agency’s affirmative defense, that the agency would have taken t he same personnel action regardless of an y whistleblowing activity ; and (2) absent his evidence of a protected whis tleblowing

disclos ure, the board could not have fou nd that the agency pr oved its affirmative defense by clear and convinc i ng evidenc e. Fi rst, the board had discretion to decide the

order in which it addressed t he merits of Holloway ’s IRA appeal, and it did not err by beginning, and ending, its evaluation by c onsidering first the agency’s affirmative

defense. See Yunus , 242 F.3d at 1372. Second, bec aus e the board was not obligated to first consider Holloway’s evidence of pr otected dis c losu res, the board did not err by considering only the agency’s evidence when evaluating its affirmative defense. T he board’s finding that the agency w ould have t a ken the s a me action in the abs ence of any alleged whistleblowing is substant ially supported by the fact that an agency hiring freeze was in plac e at the time of Holloway’ s resignation and request for reassignment.

04-3280 3